한국과 독일의 중재판례 비교연구

A Comparative study on the jurisprudence in arbitration in Korea and Germany

Nowadays many countries are globally concentrating their effort such as vitalizing the arbitration system as an most efficient alternative dispute resolution and amending the arbitration law to emerge their country as an attractive international place of arbitration. Both Korea and Germany are no exception to this trend. But to vitalize the arbitration system and to be the key role in international arbitration, the attitude of precedent toward the arbitration system has deep significance as well as the legislative effort. Though various legislation has been devised to encourage the arbitration system, there’ll be many limitation to select arbitration instead of litigation or to choose Korea as an arbitration place when the court’s application and interpretation of the law is negative or passive. Therefore the review of which the court’s arbitration practice should make a progress to advance our arbitration system is necessary. To solve the problem, we took an objective on the actual implication to develop our arbitration practice by comparing with the German’s practice which is very similar to ours in the view of legal fabric, court system and the main part of judicial process. Although regarding the document requirements in arbitration agreement, both countries’legal practice show pro-arbitral attitude in all, it is necessary to change our court’s negative stand on optional arbitration agreement or arbitration procedural illegal declaratory claim. In addition, as the court hasn’t made the decision on arbitrability of the subject-matter of a dispute in Corporate Litigation yet, we should consider it positively referring to the case of German legal practice.